of the company should have the approval of the Board of Trade or Railway Commissioners.R

5. By many of the special railway charters in England, and by the Companies' Clauses Consolidation Act of 1845, it is provided that railway companies may make by-laws under their common seal "for the purpose of regulating the conduct of the officers and servants of the company, and for the due management of the affairs of the company in all respects whatever." And they have power to enforce such by-laws, by penalty, and by imprisonment for the collection of such penalty. But a by-law requiring a passenger, not producing or delivering up his ticket, to pay fare from the place of the departure of the train, was held not to be a by-law, imposing a penalty, and therefore not justifying the imprisonment of such passenger.9

6. The statute requires a copy of such by-laws to be furnished every officer and servant of the company, liable to be affected thereby. The code of by-laws framed by the Board of Trade in England for the regulation of travel by railway, and generally adopted there, is certainly very judicious; and if some similar one could be adopted and enforced here, it would accomplish very much towards security, sobriety, and comfort, in railway travelling, and tend to exempt the companies from much annoyance and very often from loss.10 .

9 Walford, 249; Hodges, 552, 553.

• Chilton v. London & Croydon R., 16 M. & W. 212; s. c. 5 Railw. C. 4. Parke, B. says: "This is not the case of a penalty, but the mere demand of a fare. Any passenger who does not, at the end of his journey, produce his ticket, may have broken his contract with the company, and be liable to pay his full fare from the most remote terminus. But this is not a penalty or forfeiture, under section 163, giving a right to arrest for non-payment of a penalty or forfeiture." See, also, the opinion of Rolfe, B., from which it appears that the by-law was considered valid.

10

Hodges, 453. "1. No passenger will be allowed to take his seat in or upon any of the company's carriages, or to travel therein upon the said railway, without having first booked his place and paid his fare. Each passenger booking his place will be furnished with a ticket, which he is to show when required by the guard in charge of the train, and to deliver up before leaving the company's premises, upon demand, to the guard or other servant of the company duly authorized to collect tickets. Each passenger not producing or delivering up his ticket will be required to pay the fare from the place whence the train originally started.

*7. In a recent case in Vermont, it was held, that railway companies have the power to make and enforce all reasonable regulations in regard to the conduct of passengers, and to discriminate between fares paid in the cars and at the stations, and to remove all persons from their cars who persist in disregarding such regulations, in a reasonable manner and proper place, although between stations.

8. But this may be controlled as to existing railways even, by general legislation of the state. And where a statute gave all railways the power to remove those who violated any of the by

“2. Passengers at the road stations will only be booked conditionally, that is in to say, in case there should be room in the train for which they are booked; case there shall not be room for all the passengers booked, those booked for the longest distance shall have the preference; and those booked for the same distance shall have priority according to the order in which they are booked.

“3. Every person attempting to defraud the company, by riding in or upon any of the company's carriages, without having previously paid his fare, or by riding in or upon a carriage of a higher class than that for which he has booked his place, or by continuing his journey in or upon any of the company's carriages beyond the destination for which he has paid his fare, or by attempting in any other manner whatever to evade the payment of his fare, is hereby subjected to a penalty not exceeding forty shillings.

“4. Smoking is strictly prohibited both in and upon the carriages, and in the company's stations. Every person smoking in a carriage is hereby subjected to a penalty not exceeding forty shillings; and every person persisting in smoking in a carriage or station, after being warned to desist, shall, in addition to incurring a penalty not exceeding forty shillings, be immediately, or, if travelling, at the first opportunity, removed from the company's premises, and forfeit his fare.

“5. Any person found in the company's carriages or stations in a state of intoxication, or committing any nuisance, or otherwise wilfully interfering with the comfort of other passengers, and every person obstructing any of the company's officers in the discharge of their duty, is hereby subjected to a penalty not exceeding forty shillings, and shall immediately, or, if travelling, at the first opportunity, be removed from the company's premises and forfeit his fare.

"6. Any passenger cutting the linings, removing or defacing the numberplates, breaking the windows, or otherwise wilfully damaging or injuring any of the company's carriages, shall forfeit and pay a sum not exceeding £ 5 in addition to the amount of damage done."

“Note. — Persons wilfully obstructing the company's officers, in cases where personal safety is concerned, are liable, under the 3 & 4 Vict. c. 97, section 16, to be apprehended and fined £5, with two months' imprisonment in default of payment."

* 26, 27

laws or regulations of the company from their cars, at the regular stations, this was held to carry an implied prohibition from removing such persons at other points." And where one refuses to pay fare, and the train is stopped for the purpose of putting him off the train, at a dwelling-house, as by the statute of New York is allowed, the right of the conductor is not affected by a subsequent offer to pay fare.12 So, too, one may be ejected from the cars by the conductor for disorderly conduct, and in justification, it is competent to prove any improper conduct during the entire passage, and this cannot be controverted by general evidence of the good reputation of the person for sobriety. And one may be expelled, also, for refusing to surrender his ticket to the conductor on request, in conformity with the general regulations of the company.13

9. But it has been held, that a general power to make by-laws for the regulation of the use of a canal, will not justify the proprietors in closing the navigation of the canal on Sundays,14 nor in making by-laws subjecting the shares to forfeiture for nonpayment of calls, unless that power is expressly given by the charter or by statute.15

10. And a by-law declaring that the company would not be responsible for a passenger's baggage, unless booked and the carriage paid, is bad, as inconsistent with the general law, allowing railway passengers to carry a certain amount and kind of baggage.16

11 Stephen v. Smith, 29 Vt. R. 160; Chicago, Burlington & Quincy R. v. Parks, 18 Ill. R. 460. See late case in New Hampshire, in which it is held, railways may lawfully discriminate between fare paid in the cars and at the stations. Hilliard v. Goold, 34 N. H. R. 230, Post, § 28, n. 17. Post, § 160.

12 People v. Jillson, 3 Parker, C. R. 234.

13 People v. Caryl, 3 Parker, C. R. 326.

14 Calder Nav. Co. v. Pilling, 14 M. & W. 76; s. c. 3 Railw. C. 735. But it is questionable whether this case is maintainable, in this country, upon any such grounds.

15 Matter of Long Island Railw. 19 Wend. 37; s. c. 2 Am. Railw. C. 453. 16 Williams v. Great Western Railway, 28 Eng. L. & Eq. 439. But it seems somewhat questionable, whether the principle of this decision can ultimately be maintained. It seems to be no unreasonable abridgment of the right of a passenger to carry a certain weight and kind of baggage, to require it to be booked and carriage paid.

11. The members of a joint-stock company are affected by all binding statutes of the corporation from the time of their enactAnd all ment, without any formal notice of their existence. persons legally affected by such statutes, rules, or by-laws of the corporation, must conform to their requirements from the time they become aware of their existence.17

SECTION II.

By-Laws regulating the use of stations and grounds.

1. May exclude persons without business. 2. May regulate the conduct of others.

3. Superintendent may expel for violation of rules.

4. Probable cause will justify.

5. In civil suit must prove violation of rules.

§ 27. 1. Questions have sometimes been made, in regard to the right of railway companies to exclude persons from their grounds, who had no business to transact there, connected with the company, or to establish regulations or by-laws to govern the conduct of such persons as had occasion to come there, and to exclude others. But, upon the whole, there seems little ground to question the right.1

2. A railway corporation has authority to make and carry into effect reasonable regulations for the conduct of all persons using the railway, or resorting to its depots, without prescribing such regulations by formal by-laws; and the superintendent of a railway station, appointed by the corporation, has the same authority, by delegation.

3. Such superintendent may exclude from the stations and grounds persons who persist in violating the reasonable regulations prescribed for their conduct, and thereby annoy passengers, or interrupt the officers and servants of the company in the discharge of their duty. Thus, where the entrance of innkeepers and their servants into a railway station to solicit passengers to

17 Woodfin v. Ins. Co., 6 Jones' Law, 558.

1 Barker v. Midland Railw. 36 Eng. L. & Eq. 253; Commonwealth v. Power, 7 Met. 596; s. c. 1 Am. Railw. C. 389; Hall v. Power, 12 Met. 482.

go to their houses, produces such effect, they may be excluded from coming within the station; and if, after notice of a regulation to that effect, they attempt to violate it, and after notice to leave, refuse to do so, they may be forcibly expelled by the servants of the company, using no unnecessary force.

4. And where an innkeeper had been accustomed to annoy passengers in this manner, and had been informed by the superintendent of the station that he must do so no more, but still continued the practice, and afterwards obtains a ticket for a passage in the cars, with the bona fide intention of entering the cars as a passenger, and goes into the station on his way to the cars, and the superintendent, believing he had entered for his usual purpose, orders him to go out, and he does not exhibit his ticket, nor give notice of his real intention, but pushes forward towards the cars, and the superintendent, and his assistants remove him from the station, using no unnecessary force, the removal is justifiable," and not an indictable offence.2

3

5. But the superintendent cannot remove a person from the station and grounds of the company, merely because such person, in the judgment of the superintendent, and without proof of the fact, violated the regulations of the company, or conducted himself * offensively towards the superintendent. And it was said if such person is removed for an alleged violation of the regulations of the company, and it finally is shown that he did not in fact violate any of such regulations, he may recover damages of the superintendent of the station by whose order he was removed, notwithstanding such superintendent acted in good faith. And in such case, it is not competent to show that the plaintiff had been guilty of former violations of other regulations of the company.3

3

2 Commonwealth v. Power, 7 Met. 596; Markham v. Brown, 8 N. Hamp. R.

523.

3 Hall v. Power, 12′Met. 482, s. c. 1 Am. Railw. C. 410. There is an apparent discrepancy in the manner of stating the point of the decision of this case, and that of The Commonwealth v. Power, 7 Met. 596, in regard to defendant being justified, if he acted in good faith, upon probable cause, which does not seem to be warranted, by any recognized distinction, between a civil suit, for damages, and a public prosecution for assault and battery, but the court evidently intend no distinction in the cases. The law is well stated, by Shaw, Ch.